9. The origins of the Schengen system, and a
detailed description of its component parts, are to be found in
our earlier report. Paragraphs 14 to 44 of that report are reproduced
in Appendix 3.

The essential points are these:

· the
overriding objective of the Schengen arrangements is to create
an area of free movement by removing controls at the common borders
of the participating states;

· to compensate
for the lifting of internal border controls, there are strengthened
controls at the external frontiers of the Schengen area, accompanied
by an array of "flanking" measures designed to enhance
security within the Schengen area.

· the
most significant flanking measures from the point of view of the
present report are:

¨ strict
control of the external frontier of the Schengen area according
to common rules, contained in a Schengen Manual for the External
Frontier

¨ the
exchange of information, through the Schengen Information System
(SIS), on prohibited immigrants, wanted persons, stolen vehicles
etc.

¨ enhanced
police co-operation between the participating states

¨ movement
towards a common visa, asylum and immigration policy.

10. The Schengen system has developed out of
the merger of a number of Common Travel Areas among European states.
The original Schengen Agreement, in 1985, brought together the
Benelux Common Travel Area with the proposed open frontier agreement
between France and Germany. The long-standing Nordic Common Travel
Area provides for open frontiers between Denmark, Sweden, Finland
(all now members of the European Union), Norway and Iceland; its
merger with the Schengen Common Travel Area has necessitated special
arrangements with the two non-European Union states. The United
Kingdom has maintained a Common Travel Area with Ireland since
before entry to the European Community. Between the two countries
systematic controls have been replaced by selective checks, supplemented
by intelligence about potential suspects and by cross-border co-operation
between police and immigration services. The existence of this
Common Travel Area means that United Kingdom and Irish policies
towards participation in Schengen are closely linked. The Irish
Government has made it clear that its opt-out from full participation
in Schengen is due only to its commitment to maintaining an open
frontier with the United Kingdom.

11. A distinction is currently made between frontier
controls and frontier checks. Frontier controls are
systematic, and require every individual who enters a country
to pass through an immigration control channel (QQ 16, 42). Frontier
checks are intermittent, and are used mainly for customs and policing
purposes (such as anti-terrorist measures). Some Schengen countries,
such as France, operate checks in a 20-kilometre frontier zone
where mobile patrols stop individuals and vehicles which they
suspect are engaged in illegal activity. There are, however, no
systematic static controls at the border.

12. As far as possible in this report, when discussing
the Schengen States, a distinction is made between the external
frontiers of the Schengen area (for example, between Italy
and Switzerland), and the internal borders between Schengen
states (for example, between France and Germany). When discussing
the United Kingdom's arrangements, the word "frontier"
is preferred. This usage cannot however be entirely consistent
when quotations from witnesses are used.

13. The policy of the previous government was
to resist any erosion of United Kingdom sovereignty over frontier
controls. The current Government published a comprehensive statement
of its policy in July 1998, in the White Paper Fairer, Faster
and FirmerA Modern Approach to Immigration and Asylum[9].
Among the 'policy principles' set out is the 'key objective' to:

"give effect to the 'free movement' provisions
of European Community law while retaining controls at frontiers
operated by a civilian Immigration Service." (2.3)"

This is amplified as follows:

"The Government has already made clear its commitment
to maintaining the UK system of frontier controls and we have
translated that commitment into practice. In the negotiations
last year which culminated in the Treaty of Amsterdam,
the Government sought and obtained legally binding confirmation
that the UK could continue to maintain its internal frontier controls
at the frontier with other EU Member States." (2.10)

The Government argues that

¨ frontier
controls are "an effective means of controlling immigration
and of combating terrorism and other crime"

¨ these
controls "match both the geography and traditions of the
country and have ensured a high degree of personal freedom within
the UK"

¨ this
approach is different from that in mainland Europe, "where
because of the difficulty of policing long land frontiers, there
is much greater dependence on internal controls such as identity
checks". (2.9)

14. A Protocol to the Amsterdam Treaty expressly
allows the United Kingdom to exercise frontier controls on persons
seeking entry[10].
This was a necessary safeguard, as it was also agreed at Amsterdam
to bring the Schengen arrangements within the European Union framework.
The relationship between the United Kingdom and Ireland on the
one hand, and the other European Union members of Schengen on
the other, is set out in a further Protocol annexed to the Amsterdam
Treaty[11]
This describes the terms of the United Kingdom and Irish opt-outs
of Schengen. But it also makes clear that each has a right at
any time to request to take part in some or all of the Schengen
acquis. The White Paper refers to co-operation between
the Schengen States and notes that under the Amsterdam Treaty
"The United Kingdom obtained various rights to opt into such
co-operation in a flexible way so as to enable us to preserve
our particular approach whilst also participating in those
areas of co-operation which we judge important" (2.11).
The Government will "give careful consideration" to
opting-in taking into account three factors:

¨ the
need to ensure effective co-operation within Europe in tackling
organised crime

¨ the
need to preserve the UK system of frontier controls

¨ and
the maintenance of UK control of policy on immigration and asylum
(2.12).

15. In practice, the frontier controls exercised
over EEA nationals arriving in the United Kingdom are significantly
less than those exercised over non-EEA nationals ("third
country nationals"). Mr Warne, Director of the Organised
and International Crime Directorate of the Home Office told us
that "we treat them with a very light touch" (Q 3).
The nature of the control exercised at the United Kingdom frontier
therefore depends on the nationality of the persons seeking
entry. Their place of embarkation (where they have come from)
is irrelevant. Under the Schengen system, nationality is irrelevant.
EEA and third country nationals alike may move freely between
the Schengen States. But all are subject to a systematic
control if they seek entry to the Schengen area from a non-Schengen
(third) country. The key distinction between the United Kingdom
and Schengen system of controls, as Mr Boys Smith, Director General,
Immigration and Nationality Directorate, Home Office, observed,
is that one distinguishes between "categories of person"
and the other "places of origin". He added: "To
that extent, therefore, the distinction we make between EEA nationals
and third country nationals is fundamental to the control and
to the general position on the Government's retention of its frontier
controls". He did not envisage "any change of categorisation
towards the geography rather than the person" (Q 321). The
United Kingdom thus maintains a position which is incompatible
with full membership of Schengen, in that no distinction is made
between arrivals crossing the European Union's external frontier
and arrivals crossing internal borders.

16. The White Paper notes the steady increase
in passenger arrivals in the United Kingdom over the past 10 years,
from 44 million in 1987-8 to 80 million in 1997-8. On current
projections of a continuing increase of around 8 per cent per
year there will be close to 100 million arrivals in the United
Kingdom in 2001-2, 90 million of which will arrive from elsewhere
in the EEA, 10 million from outside. Witnesses explained to the
Committee that the United Kingdom has lightened the implementation
of frontier controls over the years, to enable larger numbers
to flow through British frontiers without lengthy delays. Staffing
levels at ports of entry have risen by less than 10 per cent in
the past five years, while the numbers of passengers arriving
has risen by 50 per cent. According to the White Paper, (6.5):

"without modernisation and greater operational
flexibility, so that resources are targeted more effectively on
tackling abuse and clandestine entry rather than routine work,
it will become increasingly difficult to maintain effective frontier
controls, cope with passenger growth, deliver the kind of service
standards that facilitate trade, tourism and education, and maintain
the United Kingdom's position as an international hub."

The Immigration and Asylum Bill contains new provisions
to make the operation of immigration controls more flexible and
effective. But the Home Secretary has made clear that "these
provisions will not change the fundamental basis on which our
immigration control operates. All arriving passengers will continue
to be seen by immigration staff and may be refused entry if they
do not qualify"[12].

17. In view of the Government's firm policy on
frontier controls described above, the Committee's enquiry focused
on two main issues. First, we examined the cogency of the Government's
reasons for wishing to maintain its own frontier controls on arrivals
from the EEA. Second, we considered the extent to which it might
be possible or desirable for the United Kingdom to opt into the
"compensating measures" of the Schengen Agreement.